Family Law Blog

To file or not to file Initiating Proceedings with the Family Court?

Posted by Malcolm Gittoes-Caesar on 21 Dec 2018

As is the case in most areas of society, technological advancements that positively impact family law matters are welcomed by both solicitors and their clients.  However, at times, things occur that were not anticipated with the advent of new technology, with these occurrences often causing the courts to give real thought to what may constitute 'fairness' in family law matters.

The recent case of Whooten & Frost (Deceased) [2018] FamCA 79 shows how strict adherence to the rules of the court may bring about injustice.  In my mind, this particular case also demonstrates the somewhat callous form that family law matters can sometimes take.

In the case of Whooten & Frost, in late 2016, the husband sustained an injury whilst he was undertaking farm work.  As a consequence, he was hospitalised twice and placed on life support.  Upon being made aware of his critical condition, the wife electronically filed an Initiating Application in the Family Court of Australia at 7:39pm.  She later found out that the husband had passed away at around 11:00pm that same evening.  The parties had been separated for some 18 months prior to the Husband's death.

The legal representative for the Husband's estate argued that, despite the wife's Initiating Application being filed before the Husband died, it was not deemed to have been received by the court until the next day (and was therefore outside the jurisdiction of the court).

Rule 24.05(2) of the Family Law Rules ("the Rules") (Cth) provides that:

"A document that is sent for filing by electronic communication after 4.30 pm according to legal time in the Australian Capital Territory is taken to have been received by the filing registry on the next day when the filing registry is open."

Section 79(8) of the Family Law Act 1975 (Cth) provides that, following the death of a party, proceedings must first have been instituted for a court to have jurisdiction.

The wife in this case filed an Amended Application seeking that the time for the filing of an Application be extended by a day, and that she be permitted to proceed with her Initiating Application.

The court found that the denial of the extension of time for filing in this matter would result in the Rules becoming an 'instrument of injustice', and therefore accepted that the Initiating Application was filed prior to the Husband's death at 11:00 pm.

This case highlights a number of things.  Firstly, there is a real need for family law solicitors and their clients to be familiar with the applicable legislation and Rules in order to ensure that an Application filed by a party is not deemed to have failed.

Secondly, there is a need to act promptly with respect to negotiations in family law matters.  Although no criticism can be levelled at either party in this case (and the court indeed found that the wife had not been lazy with pursuing the matters) things can occur in a person's life that completely change their circumstances, and which may manifestly impact upon what it is that a party may be entitled to, or indeed, their ability to bring proceedings at all.

Finally, the case of Whooten & Frost (Deceased) [2018] FamCA 79 is an example of the courts taking a practical approach to whether the Rules should apply to a particular situation.  However, based on my professional experience I would suggest that it is unwise to rely on the court's willingness to do so in every circumstance, thus it should not be taken as licence for solicitors or their clients to be tardy with regard to the commencement of proceedings, or cavalier with respect to the application of the Rules.

If you have a query relating to any of the information in this article, or you are in negotiations with your ex-partner and are concerned that things may change, please don't hesitate to get in touch with one of Coleman Greig's Accredited Specialists in family law:

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